Lessig: The Future of Ideas

"We move through this moment of architecture of innovation to, once again, embrace an architecture of control -– without noticing, without resistance, without so much as a question. Those threatened by this technology of freedom have learned how to turn the technology off. The switch is now being thrown. We are doing nothing about it."

--Lawrence Lessig, The Future of Ideas

I have a tape somewhere of an interview with Jerry Garcia in which he talks about taking LSD in those government-sponsored tests. He says: "I thought it was really unfortunate that they made LSD illegal, but there was like a year there where they didn't know and it wasn't illegal, and it was, like, wow, that was a really good year."

That's a sentiment that pretty much covers the Napster phenomenon. For a while there, there was a whole lot of music available on the Net -– for free. What you did with it was entirely up to you. Some people used it as a sort of radio request line ("Hmm, I feel like hearing some Van Morrison"), some used it to seek out new music ("I've been hearing about Jewel; let's hear her stuff. Cool, I think I'll get the CD"), and some used it as a free CD-printing factory ("A fast connection and a CD burner –- I'll never spend another buck on music again.") Whatever you wanted was pretty much there, no matter how obscure. And as the Recording Industry Association of America started gearing up their attacks on Napster (and MP3.com), it became clear that the jig might be coming to an end. The realization dawned: "wow, that was a really good year."

Soon, the inevitable happened. "Shut down this monster," said federal judge Marilyn Hall Patel. "But the genie is out of the bottle," we said. A hundred other sources will sprout up; with the record companies releasing music in digital form, and a good compression format like MP3, there isn't any way it won't get out there. The labels are dinosaurs, sure to be eclipsed by the fast-moving innovation of the Internet.

We must have been on acid. Now, at the end of a really bad year (in so many ways), it seems clear the genie can and is being stuffed back in the bottle. Napster is offline; the RIAA and Motion Picture Association of America have moved on to sue MusicCity, Grokster, and others; and the Digital Millennium Copyright Act is standing up in court.

This battle, which now seems to be over, is about much more than music, says Lawrence Lessig, Stanford law professor and author of Code and Other Laws of Cyberspace, in his new book, The Future of Ideas. Here was a moment, says Lessig, when the power of networks was just coalescing into something really profound. With millions of individuals (as well as businesses and universities) connected to the Internet, powerful PCs, fast bandwidth, and peer-to-peer software that let people communicate and share with each other, the times were ripe for a real breakthrough in our ability to communicate, collaborate, and participate, not just in fandom, but in making art, creating software, guiding government, forming new social organizations, and so on.

Time of Retribution

Among Lessig's most pessimistic predictions are that the people who created systems of shared communication, and those that would benefit most from it, are doing little to defend what they've built. What can be done in the face of Hollywood's powerful lobby?

Against all that newness, says Lessig, what we are seeing in the case of Napster, and countless other cases, is nothing less than the retribution of the old (at one point, he compares these forces to the Soviets) against the new. The Future of Ideas is the story of that retribution, and a plea for action. "Those who would prosper under the new regime have not risen to defend it against the old; whether they will is the question this book asks. The answer so far is clear: They will not," he writes.

Early in the book, Lessig considers Apple's advertising slogan "Rip, mix, burn. After all, it's your music." (I don't think they're using that one anymore.) He makes this point:

To the lawyers who prosecute the laws of copyright, the very idea that the music on "your" CD is "your music" is absurd… [T]his music is not yours. You have no "right" to rip it, or to mix it, or especially to burn it. You may have, the lawyers will insist, permission to do these things. But don't confuse Hollywood's grace with your rights. These parts of our culture, these lawyers will tell you, are the property of the few. The law of copyright makes them so, even though… the law of copyright was never meant to create any such power.

Earlier this month, the RealOne Music service went online, offering hundreds of thousands of songs from AOL Time Warner's catalog. For $10 a month, you get 100 downloads and 100 streams per month. There is, however, no copying of downloads to portable MP3 players, thanks to digital rights management software.

Here is the old guard's one-two punch. Use the courts to remove competition coming from the users themselves. Use code to protect against copying. Law plus code. But there is a backup punch, the Digital Millennium Copyright Act, and it is a hammer. The DMCA's anti-circumvention clause makes it a crime to try to crack digital rights management software. Law plus code plus law. Thus the industry is making certain rules:

You may not trade music among yourselves.

You may download music from us with the restrictions we set in place.

We will enforce those restrictions with code.

It is a crime to break that code.

In Lessig's view, this is a massive expansion of copyright protection, a change that shifts the entire purpose of copyright from supporting creativity to granting total and absolute property rights not to artists but to middlemen.

Offline, copyright has been expanding at a steady clip. The length of copyright has lengthened from 14 years to the life of the author plus 70 years. But online, intellectual property owners have been expanding the scope of the law in lots of ways, eroding fair use and prosecuting what were formerly considered non-infringing uses.

Richard Koman's WeblogSupreme Court Decides Unanimously Against Grokster
Updating as we go. Supremes have ruled 9-0 in favor of the studios in MGM v Grokster. But does the decision have wider import? Is it a death knell for tech? It's starting to look like the answer is no.
(Jun 27, 2005)